Passport held by UKBA!

Premo · Post by **Premo** » Thu Mar 18, 2010 3:54 pm

What are my options?

DFDS. · Post by **DFDS.** » Thu Mar 18, 2010 4:10 pm

Premo wrote:Hi people,

I have some questions.

I, french national, am just married to my non-eea wife after HO gave us COA. She applied voor EEA2 permit 1 year before we applied for COA.
Her passport is being held up to this day by UKBA from the moment she entered the UK. Passport has now expired. She is now an overstayer.

HO just send us a letter stating that EEA2 is refused because my wife did not provide a valid pp nor valid ID. Kind of strange considering that UKBA is holding the expired passport themselves and they are aware of this!

I guess we now have two options, either we ask for HO to send my wifeâ€™s passport back or we simply go to the embassy and ask for a new passport. We contacted the embassy and they told my wife that she can get a new passport. However they told that the process will take up to 10 to 12 weeks, renewing a passport would take less time.
In this case we rather ask HO to send the pp back! Is HO now obligated (according to Article 5.4 of the Directive*) to send the pp back if we ask for it? If so and we end up renewing the pp, where do we go from there? Do we have to send our pp back again to HO with a letter referring to our case and re-launch EEA2 application? God knows how long that will take again!! Is there a simpler way to go about all this if my wife would has a new pp? For example: When pp is renewed we go to a UK visa office with the marriage certificate and she gets a â€˜leave to remain/enterâ€™ stamp (should take 2 or 3 days to process?). Fact of the matter is that she needs some sort of proof for her employer.

* Article 5.4
Quote:
Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence

Duplicate!!!!!!!

Please help!

Premo · Post by **Premo** » Thu Mar 18, 2010 4:19 pm

hahaha! Very sharp my friend!

If only i could get a hint to put me in the right direction...

Obie · Post by **Obie** » Thu Mar 18, 2010 4:39 pm

Please note that Article 5.4 applies to cases wherein the EEA national/ a family member of such persons, enters a member state without an identification.

Community Law does not preclude the requirement for people to have a national ID or passport as evidence of their nationality when they are crossing an internal frontier, however it makes provision, wherein for one reason or another, the person is unable to present it to an Immigration officer.

The fact that it state, the memberstate should give the person enough time to produce the identification documents, or ascertain by other means whether or not they benefit from the free movement provision, indicates it does not give a blind exemption, or condole the act of moving to another country without an ID.

It only view expulsion as an extreme measure, and would rather it is used when all other avenue has been exhausted.

In your case, your wife is seeking residency not entry, therefore Article 10 of the Directive which states the exhaustive list of documents to provide to the national authority for a residence is applicable as opposed to Article 5.4

I will suggest you show weeding photos, or other conclusive evidence from the country of your wife's origin , stating she is who she claims to be, and the person on the Marriage certificate.

It will be best for her to get a new passport, or write to the HO department who confiscated her passport, demanding the return of the expired passport or threat with pursuant of legal action.

Premo · Post by **Premo** » Fri Mar 19, 2010 1:33 pm

thank you

DFDS. · Post by **DFDS.** » Fri Mar 19, 2010 4:23 pm

As quoted, by the OP and Obie, the Directive clearly gives several alternatives to a sititution like this one.

On the EEA2 Application forms, UKBA states that if your Passport is with Home office, you should tell them, hence quote the reference .............. .am i right?

Furthermore in the case work's manual, it's written, that the RC can as well be issued as a document on a piece of paper.

If the OP is right, that the reasons for a refusal is merely valid ID, couldn't HO rather request for submission of a valid ID, rather than wasting time sending a refusal letter?

or shall we say that when HO needs a valid ID they just send a refusal?

Was the OP given the right to appeal at all???????

Premo · Post by **Premo** » Fri Mar 19, 2010 6:20 pm

i understand

Premo · Post by **Premo** » Fri Mar 19, 2010 6:40 pm

Forgt to mention 2 important things

DFDS. · Post by **DFDS.** » Sat Mar 20, 2010 11:03 am

Pemo, yes you sent a letter explaining UKBA had the Passport with them, did you quote them the Ref. in regarding that very Passport? For i think they might find it very hard to trace your Passport with out a case Ref.

Besides, its unclear on the board, under what circumstances was that Passport withheld by HO!

Premo · Post by **Premo** » Sat Mar 20, 2010 3:11 pm

i do not understand

DFDS. · Post by **DFDS.** » Sun Mar 21, 2010 3:14 pm

Premo wrote:My wife arrived in the UK over 5 years ago.

She was only given 2 weeks stay. There was no reason given nor was she given a letter stating that she only had 2 weeks and no case no. or reference no. was given neither!

upon arrival on the airport they took her seperate, asked plenty of questions and was then told she only had 2 weeks. She had to hand in pp!

Why she only got 2 weeks instead of a 6 months visa is something that she and i dont understand! No criminal history nothing so why??

Is it fair to say that UKBA just acted wrong and they no have no idea where the pp is!?

I've got a friend who experienced a similar situation just like your wife did.

She arrived at the Airport, going through immigration, they asked her questions which she answerd very well. The IO who handled her then suched her hand bag and found some other addresses other than the one where she was going. Her Passport was taken away from her, and she was given a few days for entry. She was so frustrated with the IO, and uptodate she has never seen her passport again.

However, anumber of people have been handled by such IOs at Uk ports. And its very funny that these IOs are of a certain origins other than British, but we shall not mention their originon board.

Premo · Post by **Premo** » Mon Mar 22, 2010 12:48 pm

Interesting

mochyn · Post by **mochyn** » Mon Mar 22, 2010 1:36 pm

Obie wrote:Please note that Article 5.4 applies to cases wherein the EEA national/ a family member of such persons, enters a member state without an identification.

Community Law does not preclude the requirement for people to have a national ID or passport as evidence of their nationality when they are crossing an internal frontier, however it makes provision, wherein for one reason or another, the person is unable to present it to an Immigration officer.

The fact that it state, the memberstate should give the person enough time to produce the identification documents, or ascertain by other means whether or not they benefit from the free movement provision, indicates it does not give a blind exemption, or condole the act of moving to another country without an ID.

It only view expulsion as an extreme measure, and would rather it is used when all other avenue has been exhausted.

In your case, your wife is seeking residency not entry, therefore Article 10 of the Directive which states the exhaustive list of documents to provide to the national authority for a residence is applicable as opposed to Article 5.4

I will suggest you show weeding photos, or other conclusive evidence from the country of your wife's origin , stating she is who she claims to be, and the person on the Marriage certificate.

It will be best for her to get a new passport, or write to the HO department who confiscated her passport, demanding the return of the expired passport or threat with pursuant of legal action.

With respect to Obie I think demanding the return of the passport will not be successful as my passport states it is the property of Her Majesty's Government and not my possession

Premo · Post by **Premo** » Mon Mar 22, 2010 2:02 pm

My wife's pp is not a british one

mochyn · Post by **mochyn** » Mon Mar 22, 2010 2:17 pm

Premo wrote:My wife's pp is not a british one....

Do u mean to say that every country states in a pp that the pp is property of the state? Even if, that does not give HO right to hold my wife's pp looking at my case.

Once again, we can make a new one at the embassy but we want to avoid relaunching eeA2. What to do?

My wife's passport is also not British but it says that it is the property of her country's Government but although the HO may not have the right to hold the passport, your wife has no right to demand the return of something which is not her property

Obie · Post by **Obie** » Mon Mar 22, 2010 2:25 pm

If it anybody's property, it is certainly not the UK border agency's for the keeping or shall i say confiscating.

If the OP's wife's country want to withdraw her passport, i am sure they would have found a way of doing so without asking the UKBA.

[b] Withdrawing British Passport[/b] wrote: The Foreign Secretary has the power to withhold or withdraw a passport at his discretion, although in practice such power is exercised only very rarely and in very exceptional cases. First, in the case of minors suspected of being taken illegally out of the jurisdiction; secondly, persons believed on good evidence to be fleeing the country to avoid prosecution for a criminal offence; thirdly, persons whose activities are so notoriously undesirable or dangerous that Parliament would be expected to support the action of the Foreign Secretary in refusing them a passport or withdrawing a passport already issued in order to prevent their leaving the United Kingdom; and fourthly, persons who have been repatriated to the United Kingdom at public expense and have not repaid the expenditure incurred on their behalf.

What you stated is correct, but it happens in exceptional cases. The Foreign Secretary rather that the Secretary of state, has the power to do so.

This does not apply in this case.

The OP's wife is the legal and rightful bearer of the Passport in question.

No instruction has been given by her country for it to be confiscated.

The only person in the wrong here is the UKBA.

If what you said is correct, the reasons should have been properly stated in writing, and the right of appeal conferred.

Can you imagine a foreing country confiscating your passport without any properly explained reason.

I am sure you will go bunkers.

I think the OP should seek judicial review, that will wake UKBA up to the smell of the coffe.

Premo · Post by **Premo** » Mon Mar 22, 2010 2:44 pm

I am not a lawyer but i also think UKBA is wrong.

Kitty · Post by **Kitty** » Mon Mar 22, 2010 2:45 pm

Premo, what is your wife's nationality? Does the embassy confirm that she can apply for a new passport even if the old one is not actually reported as lost or stolen?

If it were me, to be honest, I would get a new passport, and use that and your wife's national ID card to make a fresh application. It would probably be simpler.

I would say that since you and your wife have married, her "overstayer" status under the Immigration Rules has been superseded by her actual treaty rights (other posters may want to correct me on this!). Your only problem is getting her RC, but the RC is not what confers her treaty rights.

Does your wife have any paperwork from the date when she arrived in the UK and her passport was removed? Does it have a reference number on it? I have had success in getting the UKBA to admit they have a passport by issuing a complaint to the relevant section and also writing to Lunar House requesting the passport be returned (both with the correct reference). It took a couple of goes! However, you should also be able to use your wife's name, DOB and nationality as references.[/i]

ajmal · Post by **ajmal** » Mon Mar 22, 2010 2:54 pm

Premo wrote:My wife arrived in the UK over 5 years ago.

She was only given 2 weeks stay. There was no reason given nor was she given a letter stating that she only had 2 weeks and no case no. or reference no. was given neither!

upon arrival on the airport they took her seperate, asked plenty of questions and was then told she only had 2 weeks. She had to hand in pp!

Why she only got 2 weeks instead of a 6 months visa is something that she and i dont understand! No criminal history nothing so why??

Is it fair to say that UKBA just acted wrong and they no have no idea where the pp is!?

The point is that when UKBA allow 2 weeks entry, why she overstays more than 2 weeks. They hold the passport because they want your wife to go back after 2 weeks. In 99.9 cases they give COA approval but it does not mean that she will automatically get stay on the basis of marriage. Just inform UKBA with all details including airline booking that she wants to go back to her country and they will give her passport back at airport.

mochyn · Post by **mochyn** » Mon Mar 22, 2010 3:07 pm

Obie wrote:If it anybody's property, it is certainly not the UK border agency's for the keeping or shall i say confiscating.

If the OP's wife's country want to withdraw her passport, i am sure they would have found a way of doing so without asking the UKBA.

[b] Withdrawing British Passport[/b] wrote: The Foreign Secretary has the power to withhold or withdraw a passport at his discretion, although in practice such power is exercised only very rarely and in very exceptional cases. First, in the case of minors suspected of being taken illegally out of the jurisdiction; secondly, persons believed on good evidence to be fleeing the country to avoid prosecution for a criminal offence; thirdly, persons whose activities are so notoriously undesirable or dangerous that Parliament would be expected to support the action of the Foreign Secretary in refusing them a passport or withdrawing a passport already issued in order to prevent their leaving the United Kingdom; and fourthly, persons who have been repatriated to the United Kingdom at public expense and have not repaid the expenditure incurred on their behalf.
What you stated is correct, but it happens in exceptional cases. The Foreign Secretary rather that the Secretary of state, has the power to do so.

This does not apply in this case.

The OP's wife is the legal and rightful bearer of the Passport in question.

No instruction has been given by her country for it to be confiscated.

The only person in the wrong here is the UKBA.

If what you said is correct, the reasons should have been properly stated in writing, and the right of appeal conferred.

Can you imagine a foreing country confiscating your passport without any properly explained reason.

I am sure you will go bunkers.

I think the OP should seek judicial review, that will wake UKBA up to the smell of the coffe.

I agree that the only wrong doer in this case is the UKBA but that is using western logic.
A friend of mine was deported from a country for causing an accident in which a citizen was injured by a car smash.
It made no difference that at the time my friend was in the pharmacy and had parked his company car correctly.He was immediately imprisoned and when he did not return to the company we had to search for him and provide him with food and other neccessities until he was deported.
The logic went , if my friend was not in the country it would not have happened, so it was my friends fault

Premo · Post by **Premo** » Mon Mar 22, 2010 4:10 pm

To be honest relaunching EEA2 will not be an option for us.

Premo · Post by **Premo** » Wed Mar 24, 2010 1:47 pm

quote from workpermit.com/uk:

If you fall into one of the following categories of people, you can take up any lawful employment in the UK and do not need a Work Permit:

- Those in the UK as the spouse of an EU/EEA national

Kitty · Post by **Kitty** » Wed Mar 24, 2010 2:28 pm

Premo, having looked at the Directive (2004/38/EC) and the Regulations that implement it here (SI2006/1003), there does seem to be a requirement for a valid passport. I admit this is odd, because a valid passport isn't required for leave to remain under the Immigration Rules, but there you go.

The Regulations say a residence card must be issued to a non-EEA family member "on application and production of -

(a) a valid passport; and

(b) proof that the applicant is such a family member" (Regulation 17(1))

This comes form the Directive, which says that:

"...For the residence card to be issued, Member States shall require presentation of the following documents:

(a) a valid passport..." (2004/38/EC Article 10(2))

Premo · Post by **Premo** » Wed Mar 24, 2010 2:46 pm

Hi Kitty,

I agree but as our HO refusal letter stated:

a) a valid passport OR valid id card ( which we just sent to UKBA)

(b) proof that the applicant is such a family member" --> well, our marriage cert. should be enough

This now means the case is being reconsidered, thus pending, and most importantly: no pp or id can be given to employer untill final decision has been reached as UKBA has it in their hands. Letter of sollicitor should be sufficient?

Kitty · Post by **Kitty** » Wed Mar 24, 2010 3:03 pm

Premo wrote:Hi Kitty,

I agree but as our HO refusal letter stated:

a) a valid passport OR valid id card ( which we just sent to UKBA)

That'll teach me to read posts properly!

(b) proof that the applicant is such a family member" --> well, our marriage cert. should be enough

This now means the case is being reconsidered, thus pending, and most importantly: no pp or id can be given to employer untill final decision has been reached as UKBA has it in their hands. Letter of sollicitor should be sufficient?

I would use the original Certificate of Application (the letter the HO should have sent you when your wife first applied), and the subsequent correspondence asking for her passport/ID.

Whether these are accepted by an employer will depend on how persnickety they're being about acceptable "specified documents" under the laws about preventing illegal working. A Certificate of Application is a "specified" document only if it's under 6 months old. The employer then has to call up the HO's Employer Checking service and get confirmation that the Certificate they've been given is genuine.

Now, I would say that the original Certificate, and your most recent letter, would add up to the same thing. But I wouldn't blame an employer for being cautious.

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